Linux users could face European patent threat

Linux users could face European patent threat

Summary: Microsoft could call on patents filed with the European Patent Office if it decides to carry out its threats against UK open-source users


Linux users in the UK could face a greater threat from Microsoft than previously thought, but experts agree that British open-source users are in far less danger than US users from Microsoft's claim that open-source software infringes its patents.

Microsoft has claimed that Linux and other open-source software infringes 235 of its patents. Although the company has refused to say which patents are involved, the risk must be lower in the UK than the US, because the company has far fewer patents in the UK, argued Andrew Katz, a solicitor at Moorcrofts, last week.

However, Microsoft does have more patents affecting the UK than the 51 UK patent applications Katz quoted, because Redmond also has a few hundred European patents which might have force here, depending on the decisions of UK courts, said David Pearce, an associate at Nottingham-based patent attorneys Eric Potter Clarkson, on the IPKat blog.

"Even if 400 apply in the UK, this is a vastly smaller number than the amount that apply in the US," said Katz. "It demonstrates that the UK regime is vastly different to the US regime, which is the main point that needs to be drawn out."

According to Katz, the European Patent Office has granted 431 patents to Microsoft, out of 4,341 applications. Over 7,000 patents have been granted to Microsoft in the US.

European patents are more attractive than UK patents, explained Pearce. "For obvious reasons, and not just those relating to cost, most big companies nowadays much prefer to prosecute their patent applications before the European Patent Office rather than the UK Intellectual Property Office."

"I'd never suggest that anyone should base risk management purely on the number of patents granted," warned Katz.

However, of Microsoft's 431 European patents, many will be irrelevant to the Linux case, as they deal with hardware issues, such as mice.

"In a very brief and non-scientific scan of the 51 applications made through the UK patent office, the proportion of patents which were hardware-related seemed significantly higher than a quick random sample of [Microsoft's] US patents," said Katz. 

Europe's stance against software patents is not as firm as Katz said, according to Pearce. "Europe does indeed 'do' software patents, and has done for many years," he said.

Since 1999, patents have been issued for computer program products, according to complex criteria. "[It] depends on something to do with a 'technical effect', that is, an effect beyond that of a mere computer program," Pearce explained. "This is easier to understand when computers are used to control industrial processes, but less so when applied to general-purpose computer applications."

These criteria are just "loopholes", by which patent agents try to get round a European statutory exclusion for the patentability of computer software, said Pearce. "The European Patent Convention and the Patents Act make it clear that computer software 'as such' is not patentable. This obviously generates a lot of debate as to what 'as such' means."

If its Linux patents are legal in the UK, Microsoft would have to sue for "indirect infringement" — a supplier of computer programs providing the means to put Microsoft's invention into effect — rather than "direct infringement" — a supplier providing infringing computer programs.

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"The difference is one of level and burden of proof, and effectively makes it harder to enforce the relevant patents," said Pearce. "The patents would not, however, necessarily be invalid as a whole, just in part. This would not prevent Microsoft from suing anyone — just make it a bit harder for them to win."

So both are agreed that Microsoft is much less likely to bring any patent-infringement cases against open-source users in the UK. The UK Intellectual Property Office doesn't grant computer program patents any more, since two recent applications (Aerotel and Macrossan) were rejected.

However, the status of patents already in existence is not clear without more case law, said Pearce.

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  • Not from software patents

    Patents on software are not valid in UK - according to the UK courts. Hence Linux should not be under threats from software patents in UK. The same applies to most European countries.
  • No threat at all then really

    If Microsoft actually thought they could gain anything from suing Linux users or suppliers then they would do it. No they won't even divulge which patents are supposedly infringed upon because they know there are thousands of people world wide involved in open source who would simply destroy their patent claims by discovering prior art or simply engineer out the infringements. No all Microsoft can do is make hollow claims about how they are so generous not to pursue patent infringements, and how they are open sources friend because of it. Lets face it the last company that attempted to mess with Linux ended up with such bad publicity and ill feeling towards it that its just filed for bankruptcy. Microsoft know that any attack against open source would create such bad publicity for itself that they dare not try. After all they haven't been having a good time of it recently with the EU ruling against them and failing to railroad OOXML through the ISO voting process. Maybe if they rethink their ways they may be able to benefit from cooperation with open source communities the way IBM and SUN does rather than threatening everyone all the time and gaining nothing.
  • cooperation with open source communities

    I seriously doubt that Microsoft is interested in cooperation with other OS's,
    unless they are paid in some form. It has always been their aim to eliminate the competition and I don't see them changing. Only thing they are doing is changing tactics,and they don't mind showing this on their "get the facts" web site. Of course their facts are just that, their facts, pulled out of thin air.
    I believe this patent threat is all bluff and they have no intention of opening their code to anyone. IF there is any windoze code in Linux then prove it or shut up.
  • It's not as cut and dried as all that

    But, as the story says, we do "do" software patents. There are loopholes and companies have got some patents through these that effectively patent software products, so there are software patents in force here.

    Statistically, given how few there are, I reckon it's highly unlikely that the few many (any?) of the set of 235 are in force in the UK.

    And as someone else has pointed out, Microsoft has obvious problems with acting on the supposed infringements, since it would involve revealing the patents involved, and thereby ensuring that the open source community finds prior art or engineers round it.

    It's a largely empty threat, yes, and one which is even less applicable in the UK than the US. But there is slightly more threat than we wrote last week.

    In practice, I'd say we can probably ignore the threat here - but as one person said - it only takes one patent to make a case.

    Peter Judge
  • Correct Me If I'm Wrong

    It is my understanding that when a patent holder discovers an infringement he has only two course of action, either to pursue with a claim or forget it. This third course of action where Microsoft is holding the so called patent infringements over the heads of the open source community, blackmail style, is not a viable course of action and does, so far as I understand, invalidate any subsequent claim.

    A suggestion of an attempted old style protection racket comes to mind.
    The Former Moley
  • Protection Racket. Fantastic Analogy

    I haven't heard it referred to as a protection racket before, but you know what, that is exactly what it looks like. From where I am sitting it looks like Microsoft are acting like old style gangsters using their patent portfolio as a threat to extort money out of Linux distributors and ultimately out of Linux users. Microsoft need to wake up and realise that the wind of change is blowing and people are getting pretty sick of their bullying tactics and sharp practices.